THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 104/2024


In the matter between:
MARC VAN VEEN APPELLANT
and
DIRECTOR OF PUBLIC PROSECUTIONS
WESTERN CAPE FIRST RESPONDENT
MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES SECOND RESPONDENT
THE FINANCIAL SECTOR CONDUCT
AUTHORITY THIRD RESPONDENT

Neutral citation: Van Veen v Director of Public Prosecutions and Others
(104/2024) [2025] ZASCA 46 (17 April 2025)
Coram: MOKGOHLOA ADP and WEINER and SMITH JJA and
MOLITSOANE and NORMAN AJJA
Heard: 5 March 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand -down of the judgment
is deemed to be 11h00 on 17 April 2025.

2
Summary: Application for permanent stay of prosecution – whether the
appellant’s medical condition is linked to the extra -curial delays of 11 years to
warrant a permanent stay – whether the appellant’s right to a fair trial in terms of
s 35(3)( d) of the Constitution was infringed – whether the processes outlined in
ss 77 and 79 of the Criminal Procedure Act 51 of 1977 constitute adequate remedy
to deal with the appellant’s medical condition and his capacity to stand trial.
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ORDER


On appeal from: Western Cape Division of the High Court, Cape Town (Binns -
Ward J, sitting as court of first instance):
The appeal is dismissed.



JUDGMENT


Norman AJA (Mokgohloa ADP and Weiner and Smith JJA and Molitsoane
AJA concurring):

[1] This is an appeal against a judgment of the Western Cape Division of the
High Court (the high court), dismissing the appellant’s application for a
permanent stay of prosecution. The appellant was granted leave by the high court
on a limited basis. Thereafter, he sought and was granted full leave to appeal by
this Court.

Factual background
[2] The appellant was an investment manager and a director of Evercrest
Capital (Pty) Ltd (Evercrest), a management company of a hedge fund, the
Evercrest Aggressive Fund (the EA Fund). In 2019, the appellant, together with
Evercrest were indicted in the Specialised Commercial Crimes Court (the SCCC),
sitting in Bellville, on a variety of charges, namely, fraud and in the alternative
various common law crimes involving dishonesty. There are five other charges,
based on the contraventions of, inter alia, the Financial Institutions Protection of
Funds Act 28 of 2001; the Financial Advisory and Intermediary Services Act 37
of 2002; and the Inspection of Financial Institutions Act 80 of 1998.1 The charges

1 All these statutes have been repealed and replaced with the Financial Sector Regulatory Act 9 of 2017.
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relate to investigations undertaken by the Financial Services Board (FSB) and to
the loss or potential loss that was suffered by the EA Fund in 2007, in the amount
of approximately R146 million.

[3] On 16 August 2019, the charges mentioned above were preferred against
the appellant. He first appeared in the SCCC on 27 September 2019. He was
legally represented. He made representations to the first respondent and thereafter
entered into formal plea negotiations in terms of s 105A of the Criminal Procedure
Act 51 of 1977 (CPA). He appeared on numerous occasions before the SCCC,
with his last physical appearance being 2 March 2021. The matter was on the
court roll for more than a year and six months before the appellant, in March
2021, was diagnosed with a br ain tumour known as a pituitary adenoma.

[4] An application for a stay of prosecution was brought after the criminal case
had been on the court roll for two years and three months. That was the first time
a complaint based on his right to a speedy trial was raised by the appellant. Due
to medical reasons, the appellant was unable to attend court on several occasions
and was represented by his legal representatives. According to a confidential
psychiatry report by the appellant’s psychiatrist, Dr Konrad Czech, dated
18 January 2022, the appellant sustained permanent damage to his brain resulting
from a brain tumour, which caused long -term disabling deficits. These deficits,
according to Dr Czech’s report, are associated with loss of memory, the capacity
to retrieve information and to deal with complex intellectual tasks which require
high cognitive demands. Such deficits resulted in brain freeze. Dr Czech also
stated that the appellant developed, and was treated for, anxiety and depression
during 2007 because of the FSB investigation.

[5] Dr Czech, in his report, found that whilst the appellant can understand the
charges against him, he is unable to recall relevant information from 2007 and is
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unable to convey it logically. The appellant’s legal representatives informed Dr
Czech that the appellant fully understood the charges against him but could not
cope with questions posed, especially when under pressure. Dr Czech found that
the appellant’s inability to retrieve or present information coherently prevents him
from meaningfully interacting with his legal team. Whilst the criminal case was
pending before the SCCC, the appellant, on 8 February 2022, approached the high
court and sought a permanent stay of his prosecution.

In the high court
[6] The appellant submitted that the extra -curial delay caused him irreparable
pre-trial prejudice. If he were to stand trial in those circumstances, he would not
receive a fair trial. The application was anchored on three factors, of which two
were pursued on appeal in this Court. Those are: (i) the unreasonably long delay
of 11 years prior to prosecuting him violates his right to a fair trial as envisaged
in terms of s 35(3)( d) of the Constitution; (ii) that he was diagnosed with a brain
tumour during the delay, which has caused him to lose certain faculties. The result
is that he is unable to properly adduce and challenge evidence, in breach of
s 35(3)( i) of the Constitution. If subjected to trial, he contended, he would suffer
irreparable trial prejudice .

[7] The application was opposed by the first respondent only. The first
responded conceded that there was an extra -curial delay of approximately 11
years but denied that it caused the appellant any trial prejudice. According to the
first respondent, and given the process that unfolded before the SCCC, the
appellant had clearly given comprehensive instructions to his legal team before
suffering from the medical condition.

[8] The first respondent submitted that despite the long extra -curial delay, the
appellant did not suffer significant prejudice to justify an order for a permanent
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stay of prosecution. The medical condition is a novus actus interveniens (a new
intervening event) and cannot be blamed on any of the systemic delays caused by
the state. The first respondent further submitted that the question of the
appellant’s capacity to stand trial in the light of his medical condition fell to be
dealt with in terms of ss 77(1) and 79 of the CPA. The first respondent submitted
that a s 79 enquiry will afford the trial court an independent, unbiased mechanism
to determine whether the appellant is fit to stand trial or is in a position to provide
instructions to his legal representatives.

[9] The high court rejected the explanation by the first respondent for the delay
as being weak and perturbing. It found the delay to be manifestly inordinate and
palpably unreasonable. It remarked that the uncontroverted medical evidence
suggests that the appellant’s medical condition and its sequelae have resulted in
him being intellectually disabled to the extent that he will not be able to participate
in and put up a proper defence in the criminal trial. The high court, among others,
found that: the unreasonableness of the delay is not by itself enough to grant the
relief sought. The appellant had to show that he suffered resultant and material
prejudice but failed to do so; the appellant had failed to establish that he suffered
trial-related prejudice as a result of the delay; an application for a permanent stay
of prosecution is in essence a final prohibitory interdict and the appellant has
failed to satisfy the requirements thereof; and the process outlined in ss 77 and 79
of the CPA provide the appellant with an adequate alternative remedy.

In this Court
[10] The central questions for determination in this appeal are: (a) whether there
has been an infringement of the appellant’s right to a fair trial in terms of section
35 of the Constitution; (b) whether the processes outlined in ss 77 and 79 of the
7
CPA constitute an adequate remedy to deal with the appellant’s medical
condition; and (c) whether a permanent stay of prosecution can be granted.

[11] The appellant submitted that the high court, although finding that he is
intellectually disabled and consequently unable to make a proper defence and that
the pre-trial delay of 11 years was inordinate and unreasonable, declined to grant
a permanent stay of his prosecution. This, the appellant contends, is a material
misdirection.

[12] The appellant further submitted that the effects of the brain tumour are that
he will not be able to recall events that took place in 2007; give meaningful
instructions to his legal representatives; and adduce or challenge evidence due to
the unreasonable delay. This has resulted in an infringement of his right to have
his trial begin and conclude without unreasonable delay in terms of s 35(3) (d) of
the Constitution. According to the appellant, the jurisdictional facts that trigger
the operation of ss 77 and 79 do not apply to him because he is able to understand
the criminal proceedings, albeit that his medical condition renders him unable to
put up a proper defence. The appellant contends that no adequate remedy exists
other than a permanent stay of prosecution.

[13] The first respondent submitted that the appellant’s right to a fair trial has
not been infringed in any way. Furthermore, that the appellant is not left without
a remedy. According to the first respondent, the high court was correct in finding
that the provisions of ss 77 and 79 of the CPA provide an adequate remedy.

Infringement of section 35 of the Constitution
[14] Sections 35(3) (d) and 35(3) (i) of the Constitution provide that every
accused person has a right to a fair trial, which includes the right to have their
trial begin and conclude without unreasonable delay; and to adduce and challenge
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evidence. As a starting point one has to find on the facts, a nexus between the
appellant’s brain tumour and the extracurial delay of 11 years.

[15] The appellant’s submission is that had the pre-trial processes been finalised
speedily, his trial would have been concluded by the time his medical condition
developed or was diagnosed. He would therefore, by now, if he was found guilty,
probably have served any sentence that would have been imposed on him and
would probably have been released on parole. There are no facts upon which the
appellant relied for this assertion. The date of the onset of the tumour is unknown
but it was diagnosed in March 2021. The onset of the appellant’s illness therefore
has no link whatsoever to the delay. In my view, such a contention is speculative
and is not supported by Dr Czech’s findings.

[16] The appellant does not allege any unreasonable delay from the time that he
was charged until he was unable to attend court due to his medical condition. As
soon as charges were preferred, the appellant and the first respondent engaged in,
among others, plea negotiations. The events that took place after the appellant
was charged are also relevant for the consideration of irreparable trial -related
prejudice to the appellant. Those events, in my view, will inform an enquiry
regarding whet her the appellant will suffer irreparable harm in respect of the
fairness and integrity of the trial. They are therefore crucial in determining
whether a p ermanent stay of prosecution should be granted.

[17] The appellant does not complain about the conduct of the state after the
charges were brought against him. I am of the view that an enquiry that
completely severs the extracurial delay from the conduct of the state after the
charges were brought would be disjointed. The high court found that there was a
distinct absence of substantiating particularity concerning the appellant’s alleged
trial prejudice because of the delay. That means that there were no facts to support
9
the fact-based enquiry that the high court had to embark upon. That situation has
not changed before us. It follows that this Court has no ground to interfere with
the findings of the high court in this regard.

[18] In Wild and Another v Hoffert No and Others (Wild v Hoffert) ,2 the
Constitutional Court referred to the judgment in Sanderson v Attorney -General,
Eastern Cape,3 where attention was drawn to the balance to be struck between
competing societal and individual interests once a finding has been made that the
delay was indeed unreasonable (such as in this case) and the consideration of an
appropriate remedy. A careful value judgment is required whenever a court
considers the kind of relief that would be appropriate in each case. The
Constitutional Court held that a court can tailor a snug fit between infringement
and remedy. More particu larly a court need not resort to drastic relief such as a
permanent stay of prosecution to remedy an infringement of the right to a speedy
trial that does not entail trial-related prejudice. In the ordinary course, and absent
irreparable trial -related prejudice, a stay would seldom be the appropriate
remedy.4

[19] The high court correctly found that despite the unreasonable delay in
instituting the prosecution, the appellant failed to establish that such delay has
caused him material trial prejudice. The high court, in my view, was justified in
its finding that even though there was an unreasonable delay, that, on its own, is
not sufficient to justify a permanent stay of the appellant’s prosecution.

The ss 77 and 79 of the CPA remedy
[20] Section 77(1) of the CPA provides :
‘77. Capacity of accused to understand proceedings

2 Wild and Another v Hoffert NO and Others 1998 (3) SA 695 (CC); 1998 (6) BCLR 656 (CC) para 9.
3 Sanderson v Attorney -General, Eastern Cape 1998 (2) SA 38 (CC); 1997 (12) BCLR 1675 (CC).
4 Wild v Hoffert NO para 9.
10
‘(1) If it appears to the court at any stage of criminal proceedings that the accused is by reason
of mental illness or intellectual disability not capable of understanding the proceedings so as
to make a proper defence , the court shall direct that the matter be enquired into and be reported
on in accordance with the provisions of section 79.’(Emphasis added.)
If an enquiry is directed in terms of s 77(1) of the CPA, a report must include a
finding as to whether the accused is capable of understanding the proceedings in
question so as to make a proper defence, as envisaged in s 79(4) (c) of the CPA.

[21] Section 79(1) of the CPA provides:
‘79. Panel for purposes of enquiry and report under sections 77 and 78
(1) Where a court issues a direction under section 77(1) or 78(2), the relevant enquiry shall
be conducted and be reported on -
(a) where the accused is charged with an offence other than one referred to in paragraph (b),
by the head of the designated health establishment designated by the court, or by another
psychiatrist delegated by the head concerned; or
(b) ’
The offences listed under paragraph (b) are those that relate to murder or sexual
offences, where violence is involved.

[22] There are certain facts that militate against dealing with the appellant’s
alleged intellectual disability and his contended inability to understand the
proceedings in order to put up a proper defence, through civil proceedings by
means of an application for a stay of prosecution. First, s 77 of the CPA deals with
the mental state of the accused at the trial.5 There is only one trial contemplated
and that is the criminal trial. Second, the reason for the enquiry is linked to the
‘triability’ of the appellant. Third, the accused must be able to follow the
proceedings (the appellant contends he is able to) and mu st play a useful and
constructive role during his trial by giving proper instructions to his legal
representatives.6 Fourth, there must be circumstances compelling the court to

5 E Du Toit et al Commentary on the Criminal Procedure Act (loose -leaf service 69, 2022) at 13-8.
6 Ibid (loose -leaf service 62, 2019) at 13-10A.
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exercise its discretion when directing that an enquiry must be held. None of that
could happen in civil proceedings.

[23] One of the advantages of embarking on the processes provided for in
ss 77 and 79 of the CPA is that all previous and relevant psychiatrist reports,
including that of Dr Czech, would be placed before the SCCC. This is irrespective
of whether the issue is raised by the appellant’s legal representatives or by the
court itself. Those reports will no doubt form the basis of the court’s directive for
the enquiry into the appellant’s mental capacity in terms of s 79 of the CPA.

[24] The appellant contended that the remedy provided by ss 77 and 79 of the
CPA will not preclude him from being charged again if he recovers from his
medical condition. Those processes will not result in a permanent stay of
prosecution and can therefore not constitute a satisfactory alternative remedy.
This contention goes against the case presented to the high court that the damage
to his brain is permanent.

[25] The processes provided for in ss 77 and 79 of the CPA, apply equally to
everyone who is an accused, and where there is a legal basis for their invocation
that is consistent with the interests of justice. I am satisfied that the appropriate
remedy for the appellant, does not lie in civil proceedings but in ss 77 and 79 of
the CPA.

Stay of prosecution
[26] In Zanner v Director of Public Prosecutions, Johannesburg ,7 this Court
stated:



7 Zanner v Director of Public Prosecutions, Johannesburg [2006] ZASCA 56; 2006 (2) SACR 45 (SCA); [2006]
2 All SA 588 (SCA); 2006 (11) BCLR 1327 (SCA) para 21.
12
‘The right of an accused to a fair trial requires fairness not only to him, but fairness to the public
as represented by the State as well. It must also instill public confidence in the criminal justice
system, including those close to the accused, as well as those distressed by the horror of the
crime.’
Although these remarks were made in the context of a violent crime, they apply
equally herein.

[27] A stay of prosecution, where it is not warranted, may become an
encroachment into the terrain of the prosecutorial powers. In S v Ndlovu,8 the
Constitutional Court stated:
‘When even the most heinous of crimes are committed against persons, the people cannot resort
to self - help: they generally cannot prosecute the perpetrators of these crimes on their own
behalf. This power is reserved for the NPA. It is therefore incumbent upon prosecutors to
discharge this duty diligently and competently.’ (Citation omitted.)

[28] This enormous responsibility on the prosecution authorities goes hand in
glove with the right of victims of crime, namely, a general right to know why their
cases are not being prosecuted by the state. The appellant stated that because the
crime he is charged with does not involve violence, it ought to count in his favour.
However, charges of fraud or forgery are serious by their nature because they
involve some level of dishonesty.

[29] In Canadian law, a stay of prosecution is given in rare circumstances, such
as when the integrity of the justice system is implicated. This test is employed in
international jurisdictions. In R v O’Connor9 the Supreme Court of Canada held:
‘The discretion to order a stay may be exercised only in the “clearest of cases”, meaning that
the trial judge must be convinced that, if allowed to continue, the proceedings would tarnish
the integrity of the judicial process.’



8 S v Ndlovu [2017] ZACC 19; 2017 (2) SACR 305 (CC); 2017 (10) BCLR 1286 (CC) para 58.
9 R v O ‘Connor [1995] 4 SCR 411 (SCC) para 53.
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[30] The finding of the high court that the delay was manifestly inordinate and
palpably unreasonable, ought to concern the first respondent. Extracurial delays
should be avoided. They must be accounted for in detail because they occur
before a matter is brought before judicial officers. In the case of intracurial delays
judicial officers can enquire into delays and exercise their discretion whether, for
example, further remands should be allowed or not. That is not the case with
extracurial delays. The investigations that are guided by the prosecution, such as
this one, require constant monitoring of progress by prosecutors. It does not assist
the cause of justice to explain an 11-year long delay in some ten paragraphs. All
criminal investigations must be timed in such a way that they either culminate
into criminal charges or in a certificate of nolle prosequi within a reasonable time.
The high court was justified in making the findings that it did in relation to the
explanation proffered by the state.

[31] Having said that, the explanation for the delay does not evince any abuse
nor was there any suggestion that there was such an abuse of the state’s powers.
This is one of those cases, where, as the Constitutional Court found in Bothma v
Els and Others,10 that there exist strong public policy reasons for allowing the
nature of the crime to weigh heavily in favour of allowing the charges to be heard
in court.11

[32] A permanent stay of prosecution is an exceptional remedy. It may only be
granted where the delay is egregious and has resulted in irreparable trial prejudice.
Moreover, the trial prejudice must be ‘demonstrably clear (definite not
speculative)’.12 The appellant failed to prove irreparable trial prejudice.


10 Bothma v Els and Others [2009] ZACC 27; 2010 (2) SA 622 (CC); 2010 (1) SACR 184 (CC); 2010 (1) BCLR
1 (CC).
11 Bothma v Els paras 37-38; 65.
12 Rodrigues v National Director of Public Prosecutions of South Africa & Others [2021] ZASCA 87; 2021 (2)
SACR 333 (SCA); [2021] 3 All SA 775 (SCA) para 51.
14

[33] Nothing turns on the reliance on the requirements for a prohibitory interdict
by the high court, because the effect of a stay of a prosecution is to prohibit or bar
the first respondent from continuing with the prosecution. The Constitutional
Court in Wild v Hoffert,13 referred to the relief for a stay of prosecution as
‘injunctive relief’.

[34] In conclusion, the appellant has failed to demonstrate that he has or would
suffer irreparable trial -related prejudice if the trial continues. I am satisfied that
there are no grounds to interfere with the decision of the high court. It follows
that the appeal must fail.

Costs
[35] The first respondent did not seek costs against the appellant in this Court.
The high court also did not make any costs orders against the appellant. There is
therefore no reason why this Court should take a different approach.

Order
[36] In the result, I make the following order:
The appeal is dismissed.



T V NORMAN
ACTING JUDGE OF APPEAL








13 Wild v Hoffert NO para 10.
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Appearances

For the appellant: FSG Sievers SC (with K Perumalsamy)
Instructed by Gunston Strandvik Mlambo Inc., Cape Town
Honey Attorneys, Bloemfontein

For the respondents: JA Agulhas
Instructed by: Director of Public Prosecutions, Cape Town
Director of Public Prosecutions, Bloemfontein.